What 2/3rd Majority Of All Members Means

culled from THISDAY, November 8, 2006

 In his advertorial in THISDAY Newspaper of 11 October 2006, duly signed by him, Hon. Dapianlong of the Plateau State House of Assembly clearly stated that following the vacation of the seats of fourteen of the members, "there are only 10 valid members of the House of Assembly of Plateau State. The quorum for the House is therefore now 4 members, while % of the House is 6 members," which was the number of members that passed the resolution adopted on 13 October 2006, that the allegations of gross misconduct against Governor Dariye be investigated.

The assumption that the membership of the House is now reduced from 24 to 10 because of the purported vacation of the seats of 14 members is a fallacy because it is a perverted interpretation of two-thirds of ALL the members of the House as required by section 188(4) - even supposing the vacation of the seats of 14 members to be constitutionally valid, as it definitely is not, as will be shown later. The Constitution draws a clear distinction between "two thirds majority of members" (without the word ALL), used in ten provisions of the Constitution - sections 8(l)(a) & (d), 8(3)(a) & (d), 8(4)(a), 50(2)(c), 90(2)(c), 59(4) and 305(4) - and two-thirds majority of ALL the members, used in seven provisions - section 9(2) & (3), 143(4) & (9), 188(4) & (9) and 305(6)(b)."

The Constitution cannot have intended the distinction to be a distinction without a difference, and the difference is unequivocally underscored by section 9(4) - section 9(2) & (3) is one of the provisions in which the phrase two-thirds majority of ALL of the members is used. Section 9(4) provides: "For the purposes of ......... subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution." (emphasis supplied).
Sections 48 and 49 specify the number of members of the Senate and the House of Representatives as 109 and 360 members respectively.

This provision is an unmistakable guide to the meaning of the word ALL in all seven provisions in which the phrase two-thirds majority of all the members is used. It means, in relation to section 188(4) and (9), a two-thirds majority of the membership of the Plateau State House of Assembly prescribed in section 91 (i.e. 24) "notwithstanding any vacancy", however, caused, whether by death, resignation, expulsion, the vacation of seats under section 109 or recall of a member under section 110.

Contrary to Dapianlong's argument in the same advertorial in THISDAY Newspaper of 11 October 2006, the vacation of the fourteen members' seats is not "automatic upon any of the events in subsection (1) a to h" of section 109 of the Constitution, one of the events so specified being that a "person whose election to the House of Assembly was sponsored by a political party has become a member of another political party", provided that that was not as "a result of a division in the political party of which he was previously a member." The Speaker is required by section 109(2) and is therefore under a duty to give effect to subsection (1) (a) to (h), but only if "the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member." Thus, there are two conditions before a member's seat can be vacated by the happening of any of the events specified in section 109(1) (a) - (h).

First, the provision in section 109(2) that "the Speaker of the House of Assembly shall give effect to subsection (1) of this section" makes it clear that the provisions of section 109(1), i.e. the events specified in paragraphs (a) to (h), are not automatic or self-executing; they require to be given effect to by the Speaker before a member's seat can be "vacated" by the happening of any of those events. If the Speaker fails, refuses or neglects to carry out the duty thus cast upon him, he may be compelled by mandamus to do so. If a member becomes a member of another legislative house, President, Governor or minister, etc., he remains still nominally a member until his seat is formally "vacated" by the Speaker giving effect to subsection (1). That is the clear command of the Constitution."

Sections 48 and 49 specify the number of members of the Senate and the House of Representatives as 109 and 360 members respectively.
This provision is an unmistakable guide to the meaning of the word ALL in all seven provisions in which the phrase two-thirds majority of all the members is used. It means, in relation to section 188(4) and (9), a two-thirds majority of the membership of the Plateau State House of Assembly prescribed in section 91 (i.e. 24) "notwithstanding any vacancy", however, caused whether by death, resignation, expulsion, the vacation of seats under section 109 or recall of a member under section 1 10.

Contrary to Dapianlong's argument in the same advertorial in THISDAY Newspaper of 11 October 2006, the vacation of the fourteen members' seats is not "automatic upon any of the events in subsection (1) a to h" of section 109 of the Constitution, one of the events so specified being that a "person whose election to the House of Assembly was sponsored by a political party has become a member of another political party", provided that that was not as "a result of a division in the political party of which he was previously a member." The Speaker is required by section 109(2) and is therefore under a duty to give effect to subsection (1) (a) to (h), but only if "the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member." Thus, there are two conditions before a member's seat can be vacated by the happening of any of the events specified in section 109(1) (a) - (h).

First, the provision in section 109(2) that "the Speaker of the House of Assembly shall give effect to subsection (1) of this section" makes it clear that the provisions of section 109(1), i.e. the events specified in paragraphs (a) to (h), are not automatic or self-executing; they require to be given effect to by the Speaker before a member's seat can be "vacated" by the happening of any of those events. If the Speaker fails, refuses or neglects to carry out the duty thus cast upon him, he may be compelled by mandamus to do so. If a member becomes a member of another legislative house, President, Governor or minister, etc., he remains still nominally a member until his seat is formally "vacated" by the Speaker giving effect to subsection (1).

That is the clear command of the Constitution.  The provision embodied in section 109(2) may appear otiose; on the contrary, it has a significance that lies deep in history. A parliamentary seat is an office of a peculiar kind distinguished by its historical antecedents which require that the Speaker, as the custodian of the House, its customs and the seats of its members, must be associated in the vacation of any of the seats. A parliamentary seat is not vacated as any other office may be vacated; by tradition, the Speaker, as the custodian of a seat in parliament, must, by a formal act, "give effect" to its vacation. That is the historical explanation and rationale for the provision in section 109(2) which needs to be appreciated for a proper understanding of it. Section 109(2) is part of our inheritance from British constitutional practice.

Second, before giving effect to subsection (1), "the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member."  There is of course the question, which is pending in the Federal High Court los, whether the event specified in section 109(1 )(g has happened, i.e. whether the fourteen members' leaving the PDP is as a result of a division in the party, as the fourteen members stated in their Statement of Claim and affidavit in support of the suit referred to above.

The provision embodied in section 109(2) may appear otiose; on the contrary, it has a significance that lies deep in history. A parliamentary seat is an office of a peculiar kind distinguished by its historical antecedents which require that the Speaker, as the custodian of the House, its customs and the seats of its members, must be associated in the vacation of any of the seats. A parliamentary seat is not vacated as any other office may be vacated; by tradition, the Speaker, as the custodian of a seat in parliament, must, by a formal act, "give effect" to its vacation. That is the historical explanation and rationale for the provision in section 109(2) which needs to be appreciated for a proper understanding of it. Section 109(2) is part of our inheritance from British constitutional practice.

Second, before giving effect to subsection (1), "the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member."
There is of course the question, which is pending in the Federal High Court Jos, whether the event specified in section 1O9(1)(g has happened, i.e. whether the fourteen members' leaving the PDP is as a result of a division in the party, as the fourteen members stated in their Statement of Claim and affidavit in support of the suit referred to above.

• Nwabueze (SAN),  is a Professor of Law